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Education pluralism: education choice legislation

January 11, 2023

What is education choice? 

Education choice (also commonly called school choice) is a policy approach that supports parents – often with public funds – to educate their children outside of their assigned district public school, usually promulgated at the state or federal legislative level.

There are a few basic types of modern private education choice policies, including: education savings accounts, vouchers, tax credit scholarships, tax credit education savings accounts, tax credits and deductions. Other policies not at the focus of this piece are public school choice policies, including charter school legislation and open enrollment.

A quick history

School choice has existed in a formal way since 1869 with Vermont’s town-tuitioning program. School choice, as we now think of it, began in 1991 with Wisconsin’s voucher program (in the same year Minnesota became the first state to create a charter school law.)

Education choice policies like vouchers and education savings accounts have been challenged in court over the years, usually when public funds go to religious private schools. In general, the U.S. Supreme Court has upheld such programs.

Challenges have been brought based on possible violations of the Establishment Clause and Blaine Amendments (state constitutional provisions that were enacted during the 1800s to prohibit Catholics from using public funds for private Catholic schools).

In 2002, the U.S. Supreme Court held in the Zelman v. Simmons-Harris case that an Ohio voucher program – which many parents used to pay for tuition at religious private schools – did not violate the Establishment clause. By 2017, in the Trinity Lutheran Church of Columbia, Inc v. Comer case, the court looked more to the discrimination against religious institutions in such instances. In this case, the court held that excluding a religious school from a state grant program simply because they were religious violated the Free Exercise Clause.

More recently, in the 2020 Espinoza v. Montana Department of Revenue, the court ruled against a state Blaine Amendment, saying the application of the clause in such a way that prevented the Montana tax credit scholarship program from being applied to religious private schools violated the Free Exercise clause.

This year, in Carson v. Makin, the Supreme Court said that excluding private religious schools from a state tuition assistance program – because it did religious things (religious instruction) rather than simply because it was a religious school – also violated the Free Exercise clause. In short, challenges to education choice policies have not been successful, which is a good sign for advocates who would like to create or expand in other states.

A look at the nation

According to EdChoice’s most recent data, there are 74 private education choice programs across the country.

States that do not have private education choice policies are Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Massachusetts, Michigan, Nebraska, New Jersey, New Mexico, New York, North Dakota, Oregon, Texas, Washington and Wyoming.

During 2021, appropriately dubbed the year of school choice, 18 states took legislative action to support education choice.

It was during that year that West Virginia passed the Hope Scholarship, which was the most expansive education choice program in the country until Arizona passed its universal education savings account program. Arizona is the only state to offer such a comprehensive education choice policy for every school-age child in the state.

A look at Utah

Utah has two private education choice policies, both of which are available to those with special needs: the Carson Smith Scholarship (enacted in 2005) and a tax credit Special Needs Opportunity scholarship (enacted in 2020). In 2022, Gov. Spencer Cox said he would not sign an education savings account bill that was introduced in the Legislature, halting its progress. However, the issue is not going away, and policymakers have committed to continue pursuing education choice legislation.

Supporting education alternatives is a commonsense policy position to take, especially at a time in which several years of school enrollment data suggest that alternative school options are exactly what many parents are seeking. With growing interest among parents and students for alternatives, policymakers should respond by expanding access to an education that works for them.

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